Citation Nr: 9922544
Decision Date: 08/11/99 Archive Date: 08/24/99
DOCKET NO. 97-31 269 ) DATE
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On appeal from the Department of Veterans Affairs (VA)
Regional Office (RO) in Winston-Salem, North Carolina
THE ISSUES
1. Entitlement to special monthly pension benefits based on
the need for regular aid and attendance of another person.
2. Entitlement to service connection for claimed rib
fractures.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
L. J. Vecchiollo, Counsel
INTRODUCTION
The veteran served on active duty from May 1950 to August
1953.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a July 1997 and subsequent rating decisions by
the RO.
FINDINGS OF FACT
1. The veteran is not shown to be blind or to be a patient
in a nursing home.
2. The veteran's disabilities are not shown to render him
unable to tend to the basic functions of self care without
regular assistance from another person or to protect himself
from the hazards and dangers incident to his daily
environment.
3. No competent evidence has been presented to show that the
veteran has current rib disability due to disease or injury
which was incurred in or aggravated by service.
CONCLUSIONS OF LAW
1. The criteria for the assignment of special monthly
pension benefits based on the need for regular aid and
attendance have not been met. 38 U.S.C.A. §§ 1502, 1521,
5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.351,
3.352 (1998).
2. A well-grounded claim of service connection for rib
fractures has not been presented. 38 U.S.C.A. §§ 1110, 5107,
7104 (West 1991 & Supp. 1998); 38 C.F.R. § 3.303 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Entitlement to Special Monthly Pension Benefits based on
Aid and Attendance
The veteran contends that he should receive special monthly
pension benefits based on the need for regular aid and
attendance because he is unable to cook, bathe himself, walk
more than five yards or stand for long period of time.
Initially, the Board finds that the appellant's claim is
"well grounded" within the meaning of 38 U.S.C.A. § 5107.
The Board is also satisfied that all relevant facts have been
properly and sufficiently developed, and that no further
assistance to the veteran is required to comply with the
statutory duty to assist. 38 U.S.C.A. § 5107.
The veteran was granted nonservice-connected pension
benefits, effective in November 1994, and special monthly
pension benefits on account of being housebound, effective in
November 1998.
The veteran's medical records, in particular recent medical
reports, have been carefully reviewed. The Board notes that
the veteran is shown to have received treatment for chronic
obstructive pulmonary disease (COPD) and hypertension.
The veteran was afforded a VA examination for housebound
status or permanent need for regular aid and attendance in
June 1997. The veteran complained of breathing problems and
a three-week history of right shoulder pain. The veteran was
not noted to be hospitalized or blind. The examination noted
that the veteran's left upper extremity was within normal
limits; the right upper extremity had only zero to 120
degrees of motion in abduction. The spine, trunk, neck and
lower extremities were normal. The examiner stated that the
veteran was able to walk by himself without the aid of
another or a mechanical aid. The examiner stated that the
veteran was able to protect himself from the hazards and
dangers of his daily environment in that he could walk around
the house. The diagnosis was that of COPD, secondary to
tobacco abuse; supraspinatus tendinitis of the right shoulder
with limitation of motion; and old compression fracture of T-
9 with collapse by x-ray.
The veteran was afforded another VA examination for
housebound status or permanent need for regular aid and
attendance in September 1997. The examiner noted that the
veteran had difficulty in putting on his shirt due to
tendinitis of the right shoulder with limitation of motion
and could not fully bathe himself without assistance. The
examiner also noted that the veteran had hip pain. The
examiner stated that the veteran could walk short distances.
The diagnosis was that of anxiety disorder, COPD,
hypertension and tendonitis of the right shoulder.
In a medical statement dated in February 1998, the veteran's
physician stated that the veteran needed assistance with
bathing and grocery shopping due to his COPD. The examiner
also stated that the veteran was confined to his home, could
walk for ten yards, needed to be in bed 12 hours out of 24
hours and needed a cane for ambulation.
Under 38 U.S.C.A. § 1521, pension is payable to a veteran who
served for ninety days or more during a period of war and who
is permanently and totally disabled due to nonservice-
connected disabilities not the result of his own willful
misconduct. The law further provides for an increased rate
of pension when an otherwise eligible veteran is in need of
regular aid and attendance. 38 U.S.C.A. § 1521(d).
The veteran is in need of regular aid and attendance if he is
helpless or is so nearly helpless as to require the regular
aid and attendance of another person. 38 U.S.C.A. § 1502; 38
C.F.R. § 3.351(b). The criteria for establishing the need
for aid and attendance include consideration of whether the
veteran is blind or is so nearly blind as to have corrected
visual acuity of 5/200 or less, in both eyes, or concentric
contraction of the visual field to 5 degrees or less; or if
the veteran is a patient in a nursing home because of
incapacity; or if the veteran establishes a factual need for
aid and attendance. 38 C.F.R. § 3.351(c)(1), (2), (3).
In determining whether there is a factual need for regular
aid and attendance, the following will be accorded
consideration: the inability of the veteran to dress or
undress himself, or to keep himself ordinarily clean and
presentable; whether he requires frequent adjustment of any
special prosthetic or orthopedic appliances which by reason
of the particular disability cannot be done without aid;
inability to feed himself through loss of coordination of
upper extremities or through extreme weakness; inability to
attend to the wants of nature; or incapacity that requires
assistance on a regular basis to protect him from hazards or
dangers incident to his daily environment. It is not required
that all of the disabling conditions enumerated in this
paragraph be found to exist before a favorable rating may be
made. The particular personal function which the veteran is
unable to perform should be considered in connection with his
condition as a whole. It is only necessary that the evidence
establish that the veteran is so helpless as to need regular
aid and attendance, not that there be a constant need. 38
C.F.R. § 3.352(a).
Because the VA regulations governing the claim for special
monthly pension based on need for regular aid and attendance
provide that certain enumerated factors will be accorded
consideration in determining whether the claimant is entitled
to an award of special monthly pension benefits, it is
mandatory for VA to consider the enumerated factors, and at
least one of the enumerated factors must be present for the
veteran to prevail on his claim. Turco v. Brown, 9 Vet. App.
222 (1996). Accordingly, the Board's review of the veteran's
request for special monthly pension benefits based on the
need for regular aid and attendance of another person must
include consideration of the factors outlined in 38 C.F.R. §
3.351(c) and 38 C.F.R. § 3.352(a).
Upon careful consideration of the evidence in this case, the
Board finds that the veteran is not shown to be in need of
the regular aid and attendance of another person, as required
by regulation. The veteran has neither contended, nor does
medical evidence show, that he is legally blind. Further, it
is clear that the veteran is not confined to a nursing home
because of mental or physical incapacity. Thus, the first
two criteria of 38 C.F.R. § 3.351(c) are not applicable in
this case and cannot support the veteran's claim for special
monthly pension benefits based on the need for regular aid
and attendance of another person.
The veteran's entitlement to the benefits in question turns
on whether evidence on file establishes a factual need for
regular aid and attendance. Applying the legal criteria to
the facts of this case, the Board concludes that the evidence
does not establish a factual need for the required regular
aid and attendance. In this regard, the Board notes that the
comprehensive VA examinations conducted in 1997 showed that
the veteran suffered from chronic obstructive pulmonary
disease (COPD), hypertension, anxiety disorder and
tendonitis; however, there was no demonstrated functional
restriction regarding strength and coordination which would
prevent his ability to feed, cloth and bathe himself or
otherwise attend to the wants of nature. It also was not
demonstrated that the veteran required care or assistance on
a regular basis to protect himself from the hazards or
dangers incident to his daily environment. In fact, the
examiner who conducted the June 1997 examination stated that
the veteran was able to protect himself from such hazards.
Hence, the evidence does not provide a basis for a finding
that the veteran is precluded from taking care of his daily
living activities.
As the Board concludes that the preponderance of the evidence
is against the veteran's claim for entitlement to special
monthly pension based on the need for regular aid and
attendance of another person, the benefit-of-the-doubt
doctrine does not apply. 38 U.S.C.A. § 5107.
II. Service Connection for Rib Fractures
A careful review of the veteran's service medical records
shows that an x-ray study performed in January 1952 noted
that the veteran's chest was "[e]ssentially negative" with
an unusually shaped "3rd left rib, apparently, anomalous in
origin." His lungs and chest were reported to be "NORMAL"
in connection with an August 1953 service examination.
A VA chest x-ray study performed in June 1997 noted findings
of healed fractures involving the posterior aspects of the
left eight and ninth ribs.
In a claim for service connection, the veteran has the burden
of submitting evidence sufficient to justify a belief by a
fair and impartial individual that his claim is well
grounded. 38 U.S.C.A. § 5107(a). A well-grounded claim is a
plausible claim, and one which is meritorious on its own or
capable of substantiation. Such a claim need not be
conclusive, but only possible to satisfy the initial burden
of 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet. App.
78, 80 (1990). The claim must be accompanied by supporting
evidence, an allegation is not enough. Grottveit v. Brown, 5
Vet. App. 91, 93 (1993).
For a claim to be well grounded, there must be competent
evidence of a current disability, of incurrence or
aggravation of a disease or injury in service, and of a nexus
between the in-service injury or disease and the current
disability. Caluza v. Brown, 7 Vet. App. 498 (1995).
Acceptable lay evidence may be used in lieu of expert medical
evidence to satisfy the second prong of the test, i.e.,
inservice occurrence or aggravation of a condition; but
expert medical evidence is required to satisfy the other two
prongs of the test. Id. If a veteran makes evidentiary
assertions, they must be accepted as true for the purpose of
determining whether the claim is well grounded except where
the assertion is inherently incredible or beyond the
competence of the person making the assertion. King v.
Brown, 5 Vet. App. 19, 21 (1993). Generally, lay witness
evidence is not competent as to matters which require the
qualification of particular expertise, e.g., medical
diagnoses or opinions. Espiritu v. Derwinski, 2 Vet. App. 492
(1992).
There is no competent evidence of record which would satisfy
two prongs of the Caluza test, i.e., there is no diagnosis of
an inservice rib fracture or a medical opinion linking any
putative disease or injury in service to the currently
demonstrated rib fracture residuals. The veteran, as a lay
witness, is not competent to diagnose an inservice condition
or offer an opinion as to its relationship to a current
condition. See Espiritu, supra.
The entry in the veteran's service medical records was
referable to the veteran's third rib; however, the veteran is
not shown have a current disability of that rib. There is no
reference to any disease or injury in service relating to the
veteran's left eight and ninth ribs.
Therefore, the Board finds that, since the veteran has not
submitted competent evidence to support his assertions, he
has not submitted evidence that would justify a belief by a
fair and impartial individual that his claim is well
grounded. Thus, the veteran has not met the initial burden
under 38 U.S.C.A. § 5107(a), and his claim as a matter of law
is not well grounded. See Caluza; Grottveit; Tirpak, supra.
ORDER
Special monthly pension benefits based on the need for aid
and attendance of another person are denied.
Service connection for rib fractures is denied, as a well-
grounded claim has not been presented.
STEPHEN L. WILKINS
Member, Board of Veterans' Appeals